TaxTMI 
TaxTMI 
2013 (1) TMI 203
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....PVC Paste Resin. The D.A. notified the final finding dated 20-8-2004 recommending anti-dumping duty on PVC Paste Resin falling under Customs Tariff Heading 3904 21 10 originating in or exported from European Union. Pursuant thereto anti-dumping duty was imposed under Customs Notification No. 104/2004 dated 7-10-2004. The present appeal is against the sunset review leading to D.A.'s final finding dated 26-4-2010 recommending continuation of anti-dumping duty on PVC Paste Resin falling under Customs Tariff Heading 3904 22 10. Pursuant thereto, anti-dumping duty has been imposed under Customs Notification No. 70/2010 dated 25-6-2010. 3. We have heard the learned Advocates for the appellants, domestic industry, the designated authority and the Ministry of Finance. The appellants have challenged the impugned Notification dated 25-6-2010 as well the amending Notification No. 8/2012-Cus. (ADD), dated 16-1-2012 issued by the Ministry of Finance, Department of Revenue vide their Miscellaneous Application No. AD/M/326/2012. Since the learned counsel appearing for the designated authority submitted that he was only representing the D.A. in the Ministry of Commerce and not the Ministry....
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.... within three months. Before HC also it was the stand of respondents that there was a typographical error in the FF. 16-1-2012 Ministry of Finance issued Notification No. 8/2012-Customs (ADD), dated 16-1-2012 amending Notification No. 70/2010- Customs dated 25-6-2010 and imposing anti-dumping duty on goods falling under CTH 3904 21 10, 3904 21 90 and 3904 22 10. 5. The learned Advocate Shri Rai contends that the D.A. can only continue the anti-dumping duty already imposed earlier as a result of sunset review, but cannot impose anti-dumping duty afresh on a new product by enlarging the scope of the product under consideration. He states that in this case, the original anti-dumping duty was imposed on PVC Paste Resin falling under Customs Tariff Heading 3904 21 10 whereas consequent to the sunset review, it has now been imposed on PVC Paste Resin falling under Customs Tariff Heading 3904 22 10 which is not permissible. He states that Customs Tariff Heading 3904 21 10 covers non-plasticized PVC Resin whereas Customs Tariff Heading 3904 22 10 covers plasticized PVC Resin. According to the appellants the sunset review has resulted in imposition of anti-dumping duty for the....
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....orize fresh imposition of anti-dumping duty on new items. (iv) In view of the fact that the 2004-Notification had imposed anti-dumping duty on goods covered under CTH 3904 21 10, after sunset review the duty can only be extended on such goods but cannot be imposed on goods falling under CTH 3904 22 10 or CTH 3904 21 90. 8. Apart from the above grounds, the appellants have also taken other grounds such as violation of principles of natural justice, the imposition of anti-dumping duty encourages monopoly, wrong identification of the PUC, wrong conclusion that all grades of PVC are like articles, wrong calculation of non-injurious price and dumping margin, wrong conclusion regarding causal link between dumping and injury, change of form of duty, excess confidentiality of information etc. In the miscellaneous application filed by the appellants, they have reiterated the above grounds and in addition, they have challenged the amending Notification No. 8/2012 which adds further Tariff entries in the anti-dumping Notification No. 70/2010. The learned counsel for the appellants has argued that such amendments are contrary to the submissions made on behalf of the D.A.....
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....g anti-dumping duty. He states that the duty is imposed on the PUC which is identified by description at all stages from the time of initiation of the original investigation in 2003 till the sunset review. He states that the requirement under Section 9A of the Customs Tariff Act, 1975 as well as under Rules 3, 4, 17 and 18 of the AD Rules, 1995 is for identification of the article. Description of a product is sufficient identification for customs purposes and there is no requirement to identify the product by the Tariff entry. In particular, Rule 18(1) of the AD Rules, 1995 speaks of imposition of anti-dumping duty on the article covered by the Final Finding and there is no requirement for specifying the Tariff entry. 12. He refers to the data which has been considered by the D.A. during investigation and states that it is clear from the same that the PUC has been imported not under any single Tariff entry but under various Tariff Entries. According to him, that would justify reference to multiple Tariff entries in the anti-dumping notification though the duty has been imposed on the PUC by description. He also apprehends that if all the Tariff entries, under which import i....
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....injury and causality have been proved. 16. Shri A. K. Raha, learned Special Counsel for Ministry of Finance, Department of Revenue contends that the product under consideration has remained the same all along and the change in the tariff classification has been done to prevent circumvention of anti-dumping duty by importing the PUC under other classification. He also states that the change has been done after considering letters from the complainant domestic industry. He places on record copies of these letters and file nothings leading to issue of two anti-dumping notifications and corrigendum/amendment to the same. He agrees that Heading 3904 21 90 cannot cover PVC paste resin and inclusion of the same by amending notification was not correct. He argues that classification is important for imposition of customs duty but not for anti-dumping duty. 17. We have considered arguments advanced on behalf of the appellants, the respondent Ministry of Finance, D.A. and domestic industry. We find that in the original investigation before the D.A, the product under consideration was identified as Poly Vinyl Chloride Paste Resin while stating it was also called Emulsion PVC R....
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....nclude non-plasticised varieties whereas the latter will include plasticized varieties. These Headings have been further sub-divided. 3904 21 10 includes non-plasticized PVC Resins whereas 3904 22 10 includes plasticized PVC Resins (Emulsion Grade). 3904 21 90 which has been inserted by the amending Notification of January 2012 does not include any PVC Resins. Hence, first of all we see no logic whatsoever in including 3904 21 90 which is not a classification for PVC Resins at all since it includes items other than PVC Resins. The learned Special counsel for the Ministry of Finance fairly concedes that inclusion of 3904 21 90 is a mistake. 20. We agree that under the Act and the Rules the anti-dumping duty is on a product and that the D.A. has mentioned in his initiation notification as well as in Final Finding (though not in the recommendation part) that the customs classification given by him are only indicative and not dispositive. We also agree that once the anti-dumping duty is imposed either after original investigation or after sunset review, it has to run its full course of five years unless withdrawn by any mid-stream review and that during the period it is in forc....
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....re in the customs notification it was stated that the classification is indicative. Further, it cannot be said that the Ministry of Finance had any confusion about the customs classification, administration of which is in the sole domain of Ministry of Finance, Department of Revenue. By implication, the Ministry of Finance did not impose anti-dumping duty on such of those PVC Paste Resins which did not fall under classifications other than 3904 21 10 under the initial customs notification of 2004. It is pertinent that neither the domestic industry at whose instance such duty was levied nor the exporters or the importers challenged the initial levy and it ran its full course of five years unchallenged. 22. Coming to the sunset review, it is settled law that under Section 9A(5) of the Customs Tariff Act, 1975, the anti-dumping duty imposed during original investigation can be continued on the same goods and there cannot be any fresh levy on other goods at the time of sunset review. Therefore, the inescapable conclusion is that the Central Government had no power to impose anti-dumping duty on PVC Paste Resins falling under a different classification 3904 22 10 in 2010 as has ....
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....t the earlier classification 3904 21 10. 24. From the records of the Finance Ministry placed before us by the learned special counsel, we find that orders of the F.M. has been taken on 23-12-2012 to add sub-headings 3904 21 10 and 3904 21 90 to the impugned Notification No. 70/2004. While doing so, it has been indicated to him that a similar modification has been carried out in another Notification No. 66/2011 dated 26-7-2011. But the F.M. has been kept in the dark that the modification to Notification No. 66/2011 was done without the approval of F.M. but with the approval of a Joint Secretary. Such modifications have also been done on the basis of letters from the complainant domestic industry and not on the basis of DA's recommendations. The affected parties have not been put on notice before making such amendments. Anti-dumping duty can only be imposed based on D.A.'s recommendations flowing from his investigation and such investigation has to follow rules of natural justice. Unilateral amendments based on one party's representation to an official of the Finance Ministry made behind the back of all other interested parties cannot be justified as legislative action, espec....
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.... reason that the anti-dumping duty which was imposed on PVC Paste Resin falling under Heading 3904 21 10 during the original investigation has been recommended to be imposed on PVC Paste Resin falling under 3904 22 10 after the sunset review, there has also been a breach of natural justice by not giving adequate time and opportunity to the appellants to put forth evidence to support their claims before the D.A. Further, the Ministry of Finance, Department of Revenue has imposed fresh anti-dumping duty on Plasticized PVC Paste Resin falling under Heading 3904 22 10 on 25-6-2010 instead of continuing the levy which was earlier imposed on Non-plasticized PVC Paste Resin falling under Heading 3904 22 10. Hence the said notification is in contravention of the provisions of Section 9A(5) of the Customs Tariff Act, 1975. The amending Notification dated 16-1-2012 has included two more Tariff items namely 3904 21 10 and 3904 21 90 and such inclusion is not supported by a recommendation from the D.A. Therefore inclusion of these fresh items is in contravention of Rule 18 of the AD Rules, 1995 which requires the Central Government to levy anti-dumping duty only on the articles covered by the ....